Merges: Back to the Shadows, or Onward and Upward? Current Trends in Patent Law

10 Pages Posted: 18 Apr 2007 Last revised: 17 Nov 2011

See all articles by Robert P. Merges

Robert P. Merges

University of California, Berkeley - School of Law

Date Written: January 21, 2007

Abstract

This blog posting addresses two primary concerns: (1) that the U.S. Supreme Court has taken an "anti-patent" turn in its recent decisions; and (2) emerging tensions between two key industry sectors with large stakes in the patent system, pharmaceutical/biotechnology and electronics/software. On the first point, I argue that the target of recent Supreme Court decisions is the Federal Circuit, and not patents or patent law. In particular I defend the eBay decision, and discuss the first wave of post-eBay cases, which I believe demonstrate a moderate and reasonable application of equitable principles to contemporary patent cases. As to the second point, I concur that there is a divergence of interests between pharma/biotech and electronics/software, but argue that it is essential to accommodate both sets of industries in "one big patent tent." This will require skillful compromise, legislatively and through the common law process, but it can and should be done.]

Suggested Citation

Merges, Robert P., Merges: Back to the Shadows, or Onward and Upward? Current Trends in Patent Law (January 21, 2007). Available at SSRN: https://ssrn.com/abstract=981002 or http://dx.doi.org/10.2139/ssrn.981002

Robert P. Merges (Contact Author)

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States
510-643-6199 (Phone)
510-643-6171 (Fax)

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